Posted
by
Soulskill
on Friday December 03, 2010 @10:22AM
from the legal-team-defeated-by-marketing-team dept.

An anonymous reader writes "While Rapidshare defends itself around the world from lawsuits by media companies for copyright infringement, new evidence was revealed that UK-based major label EMI is putting music on Rapidshare and directing people to download it in the hopes that it spreads 'virally.' This came to light in the ongoing copyright battle EMI v. MP3tunes over personal cloud media storage and the Sideload.com music search engine. EMI accuses MP3tunes of enabling piracy by linking to Rapidshare, but since EMI is using Rapidshare, this would seem to weaken their argument considerably. You can read the legal brief online."

Morons. If they're the ones doing the original copyright infringement and putting the files up on a file sharing website for anyone to get to, doesn't that kind of negate their claim on copyright infringements when people, you know, copy the files?

It's impossible for them to infringe upon their own copyright. But, if they are putting the files up and not identifying themselves, they could arguably be promoting infringement of their copyright by others. It appears that EMI has been using rapidshare as a promotional tool, but has been unwilling to admit that for fear that this could be seen as legitimising the site.

but if they are officially offering files as company policy doesn't that negate any charges of infringement? it's like the free oranges i get at a local food store if i spend $25 or so. they cant have me arrested for not paying it because they gave it to me.

If they don't make it clear that the company uploaded the files? I imagine so, but IANAL. It could be considered the civil counterpart to the sting operation in law enforcement. The criminal/infringer has every reason to believe what they are doing is illegal, therefore it is.

That’s a mere technicality... they can’t catch you for downloading. So they can’t sue you for it.

They tried putting honey-pots on P2P networks, serving up fake files with filenames that made them look like copyrighted stuff. Then when people downloaded them, they sued. They lost. No copyright infringement occurred, because no copyrighted material was actually copied.

They tried putting the real files on the P2P honey-pots, then suing people for downloading them. That went even less well, since the people were downloading the files from the copyright holder, which makes it all perfectly okay – even if the people downloading didn’t know it.

They tried downloading their files from people, then suing them for making the copy... but that failed for the same reason. If the copyright holder asks you to make them a copy of their own stuff, you’re authorized to do it. Even if you don’t know they’re the copyright holder.

Finally they claimed that simply making the files available is proof positive that you were infringing on their copyright, based on the way P2P networks work. They can’t prove that you uploaded it to anyone, but they claimed that it was a statistical certainty that you had.

And they still can’t get you for downloading the file. For all they know, you could have downloaded it from a legal MP3 store such as iTunes.

No... even if they do it anonymously there is no copyright infringement. They (the copyright holder) are still explicitly authorizing people to download it. (That’s why they had to invent the “making available” charge. The copyright holder can’t sue you for downloading the song from them.)

They might have shot themselves in the foot, too... now anyone who downloads music from Rapidshare could claim that they didn’t know it was an unauthorized copy, since they’ve heard of s

Maybe they don't mean for anyone else to do it, maybe they just put the files there so they could access them later. </sarcas> To be more precise, just because I put some source code up on an FTP Site, doesn't give somebody the right to violate copyright on it. Think about it this way. Linux is available for free on many web sites around the world. But if you want to go around distributing it to other folks, you have to follow the rules set out in the GPL (which extend the freedoms of copyright). So, possibly EMI putting the files up on Rapidshare (and telling you to download it) gives you the right to download it. But it doesn't give you the right to then distribute it to everyone else. Another explicit licence would be needed for that.

except when you download a distro there is a license you agree to when you install it.

Really? It's been a while since I installed a Linux distribution, but as I recall they tend to come with Free Software licenses. These licenses are distribution licenses, not use licenses, and so there is no need to agree to them to install them, only to distribute them. When I install FreeBSD, there is no license for me to agree to[1], and I wouldn't expect one.

[1] Not a BSDL Vs GPL thing - the base system includes GCC and a few other GPL'd things, but the GPL and the BSDL are both distribution licens

The default license on anything is copyright. Therefore, you are free to download it, but you aren't allowed to redistribute it, because that would be a breach of copyright. Similar to when you buy a book/cd/dvd. There is no license (usually??) but the fact that you bought the book only gives you the right to read, sell, or do anything else copyright allows. It doesn't give you the right to make 1000 copies and sell them on the street corner. There doesn't need to be a license, because copyright restri

But it doesn't give you the right to then distribute it to everyone else. Another explicit licence would be needed for that.

But you aren't being shown the copyright agreement in that case, right?

I mean when you buy the CD you have the copyright agreement on the CD, on the case it comes in, and when you try ripping from the CD in something like Windows Media Player usually gives you a warning your first time.

If you simply download the music off Rapidshare - if no Copyright agreement is shown, can you assume the file you hold isn't under copyright? Or at least in that case - they can't take money from you, only cease and desist or

So, possibly EMI putting the files up on Rapidshare (and telling you to download it) gives you the right to download it. But it doesn't give you the right to then distribute it to everyone else.

If the copyright holder is putting it up for filesharing and inviting people to download it, then not only are they giving other people the right to download it, they may also be implicitly giving permission to redistribute it given that with many filesharing systems, sharing occurs incidentally to downloading such t

No, for the files they share they are legally and legitimately offering copies for free. There's no infringement happening there. That is the normal defense used for the existence of these sites, to serve as a clearinghouse for labels and artists who CHOOSE to share their work openly in order to promote it, right? Why can't EMI participate in that same clearinghouse for the songs they choose to share, like everyone else? EMI has a gigantic catalog, why shouldn't they be allowed to share parts of it if the

The copyright holder holds all rights to the song. I would argue that they hold it for waaaaay too goddamned long, and waaaaay too goddamned strictly, and waaaaay waaaaay waaaay too broadly, but that's not relevant to the discussion. The copyright holder holds rights to the base material, and any derivations of that base material can become distinct copyrightable items.

The copyright holder can release a particular version of a particular performance of a song and still withhold cop

They can sue you for downloading it, too. Doesn't mean they'll win the lawsuit, but anyone can sue you for anything. What you have are good grounds for having the lawsuit dismissed. If they sue you for re-distributing it, the method of initial distribution would matter with respect to the strength of your defense. If they offer it via a torrent, then re-seeding is implicit in the torrent process, unlike if they offered it directly via FTP. Since they gave it to you via a mechanism with redistribution part

So, yeah, they could ding you for redistributing it, though there'd be little reason for them to, and they most likely would not (since the fact that they gave it away on RapidShare in the first place means they want that version of the song spread far and wide).

Rapidshare and all these other pay storage sites suck. So much easier to simply store crap you want to distribute to others on your own web server. I'm really annoyed when some one says "Here, grab this file" and then hands me a rapidshare link. I'm usually inclined to ignore it. I'm not waiting 60 seconds to get a file some one has invited me to or pay the toll to be a "premium user." If I do that then I need to buy subscriptions every such site my idiot friends use (and there are a lot) and I'm just not g

I'm really annoyed when some one says "Here, grab this file" and then hands me a rapidshare link. I'm usually inclined to ignore it. I'm not waiting 60 seconds to get a file some one has invited me to or pay the toll to be a "premium user."

Right, because running a webserver is cheaper than waiting 60 seconds to download a file. *eye roll*

Most people don't *have* a webserver, and wouldn't know how to get one, and wouldn't know how to run it if they had one, and wouldn't want one even if they did know all that. To most people, it's not worth $X/month plus maintenance and administration overhead just to save three of their friends a 60 second wait. (Hint: maintenance time could easily surpass the total wait time across all your friends from s

"Right, because running a webserver is cheaper than waiting 60 seconds to download a file. *eye roll*

Roll your eyes all you want, in the online world, waiting 60 seconds is a pain in the ass. And its not just the 60 seconds. For most of these worthless services you get the one shot. After that download, you need to wait an additional hour to d/l a second file. I'm not doing that. I'm glad you're so patient.

Most people don't *have* a webserver, and wouldn't know how to get one, and wouldn't know how to run it if they had one, and wouldn't want one even if they did know all that."

You know what I say to them? Fuck 'em. Your in the digital age now, figure some shit out. Get a LAMP stack with an auto-installer these are available for both windows and Linux, and hey! its a one-click

Get a Dropbox account or one of the myriad other services. Free, no waiting, you can publish a file on the web for nothing and I'm still not waiting 60 seconds to download one file.

Perhaps you should suggest this to your friends, rather than complaining about how much it annoys you when they don't.

Your in the digital age now, figure some shit out.

You know, that attitude is why Linux hasn't taken off for consumers. (And before people start flaming me, I use Linux frequently myself and like it.) You're just making it worse. People see that attitude and decide that if you're going to be a jerk about your opinions, they're not going to listen to you. If you want people to change their habits, you are doing exactly the wrong thing.

To be clear, if they own the works, their use is non-infringing. They are absolutely free to do so. Directly receiving a song in this method would be completely legal.

All this really means is that if you directly received a song via this method of distribution and you are sued for infringement of that specific song, you're legally off because it was legally given to you. After all, I'm pretty sure it would otherwise be considered entrapment.

I did not say it was the correct choice, but simply the right direction. At least they are acknowledging the significance of these websites. Would you rather they went back to trying to close them down instead?

My first reaction was that anyone who downloaded from the files that they provided would not be guilty of copyright infringement, but now that I think about it, I'm not so sure. I mean, they placed the files there in secret, and on all their products have forbidden this type of behaviour. I don't see that this would automatically be construed as permission to download their works. Even if you knew for a fact that the source you were downloading from was EMI, they never actually told you that you were allowe

As long as we're doing analogies with physical objects, it seems to me more like placing your wedding ring on a park bench when nobody is looking, leaving it there for a few weeks, and complaining when it's stolen.

Unlike with the pawnbroker, it's still illegal the activity, but it's hardly surprising that it occurred in the first place.

To the best of my (layman's) knowledge, the area of what implies an "implied consent" or "implied contract" is often rather murky, and based on a mixture of precedent and judicial gut feeling, along with some patchy laws.

I would be pretty certain that EMI posting Song X to which they own the copyright to Rapidshare does not entitle me to (legally) redistribute it; but it seems like there might be a very good argument that it does entitle me to, legally, download it. If there is a location(a Freecycle depot or something) that operates under a large banner saying "Free stuff, take what you want, save it from the dump!" and I place a computer that I own in that location, I have to imagine that a reasonable man, in the legal sense, would conclude that I am thereby forfeiting ownership of that object(unless I can specifically prove that I was just carrying it, set it down for a moment to catch my breath, and somebody snatched it from beside my feet, or something similar).

Rapidshare, as its name would suggest, is basically an electronic analog of such a physical place. You put stuff there to distribute it(though, if memory serves, they might have some private distribution option for members). If a rightsholder knowingly and intentionally places material to which they own the rights in a place that explicitly operates as a medium for free dissemination, one would imagine that this amounts to an implied consent to, at least, free dissemination from that location. It doesn't clearly mean surrender of copyright, so it might not save those who re-disseminate it by other means; but it would seem to imply a licence to disseminate has been granted to rapidshare...

Obviously, IANAL; but I know that there are limits to what you can do without creating implicit, and binding, rights to for others. You can't mail somebody something without their consent and then invoice them for it, if you try, the thing that you mailed is a gift. If you put something on the curb, with a "free-take me" sign, you can't reasonably expect to charge the person who does with larceny...

Also, forgot to mention: this would seem to be especially strong if Rapidshare has some sort of clickwrap "I swear, aver, and affirm that I am authorized to upload this file and make it available for download" screen in their upload process. Obviously, everybody knows that such a message is simply ignored 99% of the time, by whatever scurrilous pirates are using the site; but if the actual copyright holder actually clicked through a screen like that, things might be even more provably uncomfortable for them

If a rightsholder knowingly and intentionally places material to which they own the rights in a place that explicitly operates as a medium for free dissemination, one would imagine that this amounts to an implied consent to, at least, free dissemination from that location. It doesn't clearly mean surrender of copyright, so it might not save those who re-disseminate it by other means; but it would seem to imply a licence to disseminate has been granted to rapidshare.

That is precisely correct. It is still copyrighted but they’ve authorized Rapidshare to distribute it, in accordance with the usual terms of uploading a file to Rapidshare. That still doesn’t mean that somebody can download it from RS and put it on their personal web page and claim that it’s authorized, although they could link to the RS file.

Maybe. To be allowed to upload it, they would need a license that permitted redistribution. In the case of RapidShare, this is probably not granted, even implicitly. If they had distributed the files via some p2p protocol, then it would be much harder to argue, because these protocols require peers to redistribute the work to function, so a limited redistribution license would be implicit (meaning a good lawyer would have a 50-50 chance of persuading a court that it was present).

Murky is not the right word. It is a very important area of law, for obvious reasons, and it depends (in common law systems) on several hundred years of case law. So it is complex, but also very well-studied. The main issue in a case like this is that it is not likely to be interpreted the same everywhere. So it's a damned stupid thing for them to do, but then decisions like that probably explain why they're in the situation they are.

Are people seriously going to start blasting away about this with nothing more for evidence than that the defendant filed an exhibit under seal? So basically, he thinks its true, and that his evidence is solid, but none of us can see it-- and thats enough for everyone to believe it?

Dont get me wrong, it wouldnt be hard to imagine this being real-- but the fact that everyone here is going to take someone's word about it-- especially when winning their court case is dependent on that statement-- is rathe

The attorney is referencing a specific document that was produced in discovery by EMI. The attorney Mr. Gulia signed a declaration under penalty of perjury that it's true. The attorney could face severe penalties including losing his license to practice law if it's untrue.
-- MR

The big record companies won't do anything that the don't think is going to be profitable. So if EMI is indeed using Rapidshare to promote some of their artists' music, then there must be something to it. All of these years of arguing that piracy on sites like Rapidshare hurts their bottom line would seem to be contradicted. EMI is just following the money. If giving away songs ultimately helps sell more of them, then they will do it. Ironically, the pursuit of p2p lawsuits has damaged their reputation so much that they probably have to make songs look like illegal downloads to be attractive to their target market.

You fucking bastards!!! You sue the LIVING FUCK out of little old ladies because their granddaughter shared a few songs, and then you turn right around and fileshare your shit music for your own benefit? FUCK. YOU.

EMI can distribute their copyrighted works anyway they wish. I don't think that's at issue.
What is at issue is the www.Sideload.com music search engines which doesn't host any files, but simply links to various places. EMI is complaining that all the links on Sideload.com are unauthorized and complains about links to Rapidshare to illustrate their point. However if they're placing files on Rapidshare and then inviting people to download them from that location, then they can't very well claim all links to